Leena & Leena [2025] FedCFamC1A 241 (23 December 2025)

1. Sections 68 of the FCFCOA Act provides that parties are to act consistently with the overarching purpose.

1. An objective consideration of the context in which impugned judicial conduct occurs is essential in considering whether there is apprehended bias. The context in this case which was referred to by the primary judge in his Honour's reasons to refuse the recusal application include the following:

(a) consent orders had been made on 17 August 2023 which provided for the parties to have equal shared parental responsibility for the children and for there to be a gradual increase of time between the respondent and the children to three nights per fortnight;

(b) the appellant, at final hearing, was seeking a substantial reduction in the respondent's time with the children, to day time once per fortnight and one afternoon each week. Whilst not expressed prior to the impugned comments being made, counsel for the appellant said in relation to the orders sought by the appellant in final submissions that:

[Counsel for the appellant]: ...The children live with the mother. Now, the spend-time-with orders, I think I explained that the thinking underlying those orders, which is that this is an attempt to cause the father to reset and to really look at his priorities and his approach not only to the children but to himself. There are things he needs to address to improve his own parenting capacity and these orders give him an incentive to do that. And they are pretty draconian that's true.

(Transcript 14 February 2025, p 698 lines 39-45)

(c) the appellant's case as stated at paragraph 174 of her trial affidavit, was that the paramount justifications as to why she believed that the children should be afforded day time only was because she believed that the respondent was unable to solely parent and because he dismissed their medical needs;

(d) the respondent was seeking an increase in time to five nights per fortnight;

(e) the Family Report at lines 1230-1232 and at 1445-1449, noted that the appellant's Notice of Child Abuse, Family Violence or Risk filed 5 May 2023, did not identify any risk presented by the respondent arising from physical family violence:

As noted below, [the appellant's] Risk of Harm document does not highlight concerns about violence and harm beyond that limited to the father's purported inability to meet the children's developmental needs.

...

[The appellant's] Risk of Abuse/Harm document refers to the father's alleged inability to meet the children's needs, particularly in light of their disabilities, yet makes little reference to physical violence and the risk it posed the children. More is seemingly made of the father's purported inability to follow medical advice, financial abuse, and not acknowledging the children's birthdays or Easter (noting the father did attend after-school care, unexpectedly, at the time of [X]'s birthday).

(f) the appellant, at the time when the first tranche of impugned comments were made, had been cross-examined for a day and had the opportunity to explain why the respondent presented a risk to the children and it was her evidence which was significant in determining whether the respondent presented a risk given that there had been a lack of specific allegations supporting a finding of risk which had been raised against the respondent;

(g) as was noted by the primary judge, since proceedings had been issued in the Federal Circuit and Family Court of Australia (Division 2) on 5 May 2023:

(i) the parties had filed 178 documents, and their competing applications have been the subject of 26 orders;

(ii) the appellant and the respondent had between them filed 29 subpoenas;

(iii) the affidavit material in the name of the parties alone, which was filed for trial exceeded 1300 pages and the tender bundles of the parties exceeded 2000 pages;

(iv) the appellant had expended and otherwise exposed herself to legal fees in the order of about $275,000. That sum does not include the costs associated with the application filed on 6 February 2025; and

(v) the respondent had expended a sum of $300,034.60 and by the conclusion of trial, the respondent would have exposed himself to a further sum of $124,913 including work in progress. As with the appellant, that sum does not include the costs associated with the application filed on 6 February 2025.

(h) the appellant accepted in cross-examination that her affidavit evidence was highly critical of the respondent as a parent.

Preliminary views and comments made by the primary judge

1. In support of the first limb of Ebner, the appellant, first, points towards the following exchange at the conclusion of the first day of the hearing. At this time, the appellant was being cross-examined. We will set out the interaction in its entirety:

Primary judge: All right. Counsel, overnight with [counsel for the ICL's] assistance, I want you to give some thought to where this case is going. I'm entitled, having regard to what the majority had to say in Johnson at paragraph 13, to give an intimation and to identify the real issues at bar. I'm not persuaded, having heard the evidence today - and this might change tomorrow, and the next day, for that matter - but the evidence today, I'm not persuaded that the father presents a risk to these children. My obligation is to make arrangements which promote the safety of the children, and at the current juncture, subject to the balance of the evidence and the evidence of the single expert, I'm not persuaded that a reduction in time is in their best interests, nor am I persuaded that these children are at risk of harm in the father's care. As I say, my view is not concluded, but I'm entitled to express these views. The objective evidence is that these children are doing well at school. Dr [H] says that. The inquiries of a single expert seem to suggest that despite the dysfunction of their parents, the children are, in fact, doing well. At line 1225 onwards of the family report, the family report writer says that, in his view, the risk of family violence is - I think he says minimal - given the minimal contact between the parents**. On the evidence I have heard today, I have to say, at the current juncture, I agree. My view might change, but I agree.** At line 1234 of the family report, the single expert says:

"The father, by virtue of having medication supplied in dispensing boxes, would seem to be administering the medications as required, and any significant interruptions to this would be expected to be reflected at school or in Ms [E]'s appointments on Mondays, but this does not appear to be the case."

Your client concedes that the father is administering the medication by the Webster-paks, and that issue is resolved. So I think we're now down to the provision of the liquid formula, and I would have thought, the brains at the bar table, you would be able to resolve that issue, I would have thought. Then, if I look at lines 1273 of the family report and onwards, it seems that the children do have a warm relationship with their father, and by reason of [Y], in particular, seeking proximity to him, it was the family report writer's view that the children experience him as protective and a comforting figure. I'm struggling, I have to say. My preliminary view is these parents hate each other, and my preliminary view is that their capacity to communicate is compromised. Does that mean that there's an order for sole parental responsibility? I've got an open mind about it at the moment. Does it mean that Dad gets five nights? I'm not sure. We will need to see where the evidence goes. But five nights requires a significant degree of communication. But I'm not persuaded at the moment that it is in the children's best interest for their time with the father to be reduced. I've got an open mind about it. I'm just giving an intimation, as I'm entitled to do. I need everyone to have a think about it. Because, madam, my impression of you is that you care for these children deeply. You love them?

[The appellant]: Yes.

Primary judge: You want them to be safe. But my impression is also that, no matter what the father does, it will never be good enough for you. Ever. I'm right about that, aren't I?

[The appellant]: No, I don't think so.

Primary judge: He will never, ever, ever be good enough for you?

[The appellant]: I don't think so. I think if the basic things weren't such a challenge, just like giving the meds - - -

Primary judge: But that's resolved, on your own evidence, apart from - - -?

[The appellant]: No, it's not.

Primary judge: - - - the liquid issue?

[The appellant]: No, it's not. That's one child. I have two children.

Primary judge: Right?

[The appellant]: So one child is now getting them. The second one is not.

Primary judge: Because it's in - is that because it's in liquid form?

[The appellant]: That's because he says she doesn't need it, in his own testimony.

(Emphasis added)

(Transcript 20 January 2025, pp 107-108 lines 4-44, 1-15)

1. It is the appellant's assertion that this exchange is indicative of the primary judge having formed a view of the appellant, namely that her complaints of the respondent were due to her high standards and not the respondent's conduct. The questions by the primary judge referred to above were said to be improper and demonstrated the strength of the view he had formed.
2. This exchange, however, must also be viewed in the context of what was said immediately following that exchange:

Primary judge: Anyway. I'm not persuaded at the moment that the interests of the children warrant reduction in time. [Counsel for the Independent Children's Lawyer], you can give it some thought over night, but I don't know where this is going. And these parties have spent over half a million dollars on a matter which, frankly, I'm surprised is in division 1, but there you go.

[Counsel for the respondent]: Your Honour, can I indicate that there will be no objection taken by me if my learned friend wishes to speak to the mother about the comments that you have made.

Primary judge: Well, I just think these are young children. As the mother herself pointed out, these parents have to co-parent for another 10 years.

[Counsel for the respondent]: Yes.

Primary judge: It's up to them. And if these children are anxious, which everyone seems to agree they are, I have one theory, which is their anxiety is caused by the conduct of their parents. Perhaps the parents can reflect on that overnight. But I'm not persuaded that it's going to make their lives better if their time with their father is reduced. I'm not convinced yet. But you might persuade me tomorrow.

[Counsel for the respondent]: Your Honour, I think the comment I made was, if my learned friend wishes, I don't have any objection to leave being provided to him to discuss your Honour's comments with the mother.

Primary judge: I trust you all. You don't need my leave. You're smart. You're experienced. You can sort it out. All right. Well, on that happy note, I will see you in the morning.

(Transcript 20 January 2025, p 108 lines 17-43)

1. Whilst the comments and exchange with the appellant were made prior to cross-examination of the respondent, and this was acknowledged in the primary judge's remarks emphasised above, it is well settled that a preliminary view expressed by a judge in the course of a hearing does not necessarily indicate that the judge has closed their mind; see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at 610-611 [112]-[114] per Kirby and Crennan JJ; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 [13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150 at [43] per Allsop CJ, Middleton and Katzmann JJ ("GlaxoSmithKline")).
2. We do not accept the submission that the preliminary view expressed by the primary judge coupled with the exchange with the appellant might give rise to an apprehension of basis in any such observer as required. The primary judge acknowledged that his view was subject to change and further evidence (including the cross-examination of the respondent) and, in our view, only an unduly sensitive or suspicious observer would regard it otherwise.
3. In this respect, the exchange between the primary judge and the appellant, the hypothetical observer would appreciate to be the primary judge attempting to seek clarification to assist the parties in what had been protracted and taxing proceedings at an expense disproportional to the matters being litigated. Again, the primary judge in his Honour's written reasons, described the proceedings as having an extraordinary history with over 178 documents being filed within less than a two-year period with well over $500,000 expended on legal fees. This was in the context of the parties' net asset pool said to amount to about $1,545,026 (on the appellant's evidence) and $1,088,205 (on the respondent's evidence), excluding the value of the appellant's interests in an inheritance. It is also noted that this exchange occurred at the conclusion of the first day of hearing where counsel for the respondent had indicated they had completed their cross-examination for the day, and the matter was about to be adjourned until the next day.
4. The primary judge was plainly encouraging the parties to seek to discuss the matter so as to resolve all or part of the proceedings. The resolution of disputes by compromise, rather than litigation, is in the public interest: Jireh International Pty Ltd v Western Export Services Inc (No 2) [2011] NSWCA 294 (Macfarlan and Young JJA, Tobias AJA).
5. The appellant further submits that at the conclusion of the second day of the hearing, the following comments are of concern:

Primary judge: ...I think I am going to struggle to find, on the evidence I have heard at the current juncture, that the father presents a risk to the children. Maybe tomorrow and the next day will change my mind. But at the moment, I'm not convinced. And I would urge everybody to consider the minute that has been circulated by the independent children's lawyer...

(Transcript 21 January 2025, p 218 lines 43-47)

1. Again, for the reasons expressed above, we do not consider that this satisfies the required test. In Warhurst & Landy [2014] FamCAFC 201 the Full Court stated:
   1. ... The process of judicial decision-making, particularly where the ultimate issue is the best interests of a child, frequently involves a process of forming and re-forming preliminary views instructed by the evidence. Further, her Honour was mandatorily required to "actively direct, control and manage the conduct of the proceedings" before her (s 69ZN(4) of the Family Law Act 1975 (Cth) ("the Act") and that can frequently involve a judge testing relevant alternative propositions or outcomes.
2. The Full Court of the Federal Court of Australia in GlaxoSmithKline stated at [39] that "the fair-minded lay observer will also recognise that a professional judge is capable of departing from an earlier expressed opinion."
3. Moreover, a fair-minded lay observer will take into account the fact that an open judicial mind does not mean a blank mind. In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531-532, Gleeson CJ and Gummow J said:
   1. ...Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
   2. The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. This preliminary argument should be rejected."
4. This aspect of this ground of appeal is not made out.

Directions made by the primary judge in cross-examination

1. The second matter the appellant raises to support her assertion of apprehended basis is the manner in which the primary judge was said to direct the cross-examination of the appellant in ways that were detrimental to her case. This includes:
2. On the first day of the trial, the primary judge remarked to counsel for the respondent when the appellant was being cross-examined:

Primary judge: [Counsel for the respondent], I would be assisted by some cross-examination about the orders of 17 August '23 which don't appear to contain a relevant restraint.

(Transcript 20 January 2025, p 44 lines 19-20)

1. It was submitted by the appellant that this assisted the respondent's case where the relevant restraint was referring to the August 2023 orders which did not include a restraint on the respondent from consuming alcohol and that the primary judge relied on this in his written reasons when finding that the respondent did not pose a risk by way of his alcohol consumption. The appellant, at the final hearing, was seeking final orders in the following terms regarding alcohol use by the respondent:
   1. On a without admissions basis, the Respondent father is restrained from consuming alcohol 24 hours prior to and during the time that the children are in his care.
2. The primary judge was entitled to the appellant's evidence as to why she sought the Court to make that order. It is a proper exercise of judicial function. The appellant further raises that shortly following this exchange the primary judge directed the appellant in cross-examination to "answer the question" when she had done so:

[Counsel for the respondent] And this is during your relationship and it's fair to say, isn't it, you take her to visit Dr [N] again about her behaviour?

[The appellant]: Sorry, just - can I have a moment to read it so I can confirm? Yes. That was for a referral to a service. Yes.

Primary judge: Can you answer the question? - - - Sorry, can you repeat the question?

(Transcript 20 January 2025, p 46 lines 42-47)

1. This exchange whether considered directly or cumulatively does not suggest basis.
2. The appellant raises that the primary judge asked counsel for the respondent to conduct cross-examination on a document which was not in evidence in circumstances where a portion of the document was being tendered and the primary judge asked counsel for the respondent to cross-examine on that entry. That interaction in full is as follows:

[Counsel for the respondent]: Well, ma'am, I want to suggest to you that the ear infection had cleared up on 3 February?

[The appellant]: Well, I disagree. Well, it wasn't actually an ear infection. So it was a tooth pain, but at that time, they thought it was ear infection, but it was inflammation from the tooth abscess infection. So it looked like one. That's why it wasn't healing, but that's, like, the long story of it.

[Counsel for the respondent]: Your Honour, I tender 793 and 794.

[Counsel for the appellant]: There's no objection.

Primary judge: All right. Any objection? No. So notes of consultation between Dr [B] and - - -

[Counsel for the respondent]: No, it's Dr [N] that starts down the bottom of the page.

Primary judge: Okay. You're not tendering the 1 February entry?

[Counsel for the respondent]: No.

Primary judge: Right. Notes of telephone consultation between Dr [N] and the mother, presumably, dated 3 February 2023 will be exhibit H5.

I would be assisted by some cross-examination about the entry of 1 February though.

(Transcript 20 January 2025, pp 57-58 lines 23-43, 3-4)

1. This was a subject that was relevant to the decision the primary judge was required to make. His Honour's request for evidence was appropriate. His Honour is entitled to make enquiries or invite further evidence to be given.
2. Following on from that exchange, counsel for the respondent proceeded to cross-examine the appellant regarding the entry. The entry concerned an incident where the child hurt herself and the appellant was not informed:

Primary judge: So, [counsel for the respondent], at this juncture are the children still spending time with the father pursuant to the mediation agreement?

[Counsel for the respondent]: They were, yes.

Primary judge: They were. Right. But five days prior, the mother files an application wherein she promotes no time on an interim basis.

[Counsel for the respondent]: I don't have that report.

Primary judge: Madam, the children were spending time with the father pursuant to a mediation agreement which was in January 23. Am I getting this right, January?

[The appellant]: No, I think - December.

Primary judge: Or December for overnight time?

[The appellant]: Yes.

Primary judge: And then when you file your application in May you promote no time between the children and their father on an interim basis. Are you able to explain to me why not?

[The appellant]: So, we had a 60I, we actually didn't have a mediation outcome. So, this was just he and I negotiating, loosely based on what we had discussed at mediation.

Primary judge: Right. And that included overnight time?

[The appellant]: It did. I can't recall fully if it was overnight time at that stage, I apologise, my memory's not the best from so far ago. It most likely did. But as things kept transpiring I think that's when the situation has changed but I can't recall I'm so sorry without looking at my notes.

Primary judge: You agreed earlier that he spent overnight time with the children, so whatever the scenario, the agreement with him was that the children would spend overnight time with him, and then in May 23, having been advised by police to catalogue phone calls and CCTV footage, you make an application for no time?

[The appellant]: No.

Primary judge: So, what was motivating you at that juncture for your application for no time?

[The appellant]: I think those no times happened after two physical altercations - well, not altercations, injuries with the children. Obviously kids get hurt, that wasn't the issue for me but it was the fact that they were told to lie to me that it existed and they were quite stressed by that. So [X] was limping after one of the visits and then [Y] came back from one with a scrape down the whole right side of her body. And it was significant enough to draw blood from most of the scrape. So again that was denied. So the fact that we couldn't have a relationship where I actually knew the injury that occurred caused me great concern. It was told to me that nothing happened, yet as soon as she walked in the door and I saw her and she told me she had fallen but couldn't give me much details, it was really concerning to me that the children seem to be coached not to tell me the truth and I was worried that something more could have happened. I don't even know if they hit the head or anything and because I couldn't get information from him around it and he denied its existence, I was too concerned that if it was a continued pattern whether it was lack of supervision or further injuries would happen, that it could be worse on the next occasion.

Primary judge: [Counsel for the respondent], if it's convenient to you, I wouldn't mind some evidence about that issue.

(Transcript 20 January 2025, pp 62-63 lines 5-47, 1-7)

1. Again, the primary judge was entitled to ask these questions. His Honour's questions gave the appellant the opportunity to respond. His Honour's request or invitation to counsel for the respondent to ask further questions was an appropriate means of informing himself of the appellant's reasons for seeking no time orders between the children and the respondent when she had six months prior agreed to the respondent spending five nights with the children each fortnight.
2. Further complaint is made by the appellant arising from the primary judge cross-examining the appellant where his Honour was said to have misunderstood the evidence given directly prior:

[Counsel for the respondent]: Did you tell [Y] that the father was unsafe?

[The appellant]: No, we don't use that word at home. We have set terminology we use. It would be good choices/not good choices, so it would have been something along those lines.

[Counsel for the respondent]: Did you say to [Y] that she's not seeing her dad for her own well-being?

[The appellant]: No, because she would not comprehend what "well-being" is.

[Counsel for the respondent]: All right. Did you tell [X] that she was not saying to her father because it wasn't safe for her?

[The appellant]: No. Again, I wouldn't use those terms. I would use more appropriate terms that they're aware of. We are very consistent with our terminology at home.

[Counsel for the respondent]: Did you tell either of the children that, "Dad needs to improve his behaviour before he sees you again"?

[The appellant]: No, that would not be appropriate. It would be, again, good choices/not good choices.

[Counsel for the respondent]: Well, what explanation did you give to the children as to why they weren't seeing their father anymore?

[The appellant]: As I - I've mentioned a couple of times now, it would be something around good choices/not good choices.

[Counsel for the respondent]: Well, what does that mean?

Primary judge: Sorry. Did you tell the children that it was a bad choice to spend time with their father? Is that what you're telling me?

[The appellant]: No, not at all.

Primary judge: Well, what are you saying?

[The appellant]: So when they give examples of what's happening, then we talk about is that a good choice or a not good choice, or things like that. So if they were asking about seeing their dad and bringing up a scenario or situation, I normally reflect it back to them and say, "What do you think that is? Is that a good choice/not a good choice?" So we would have a conversation like that because that's what their therapy has always said to do. So that would be something along the lines - I can't recall at that time what was said or what the instances were, but this is taken out of context. She wanted to see her dad because he wasn't buying her things. That's not mentioned here. She missed the money being spent on her.

Primary judge: Did you assure [Y] it was good choice to want to spend time with her father?

[The appellant]: I always say that. It's a good choice. She has got two homes. Her dad loves her. I love her. We're working through it. Most of the time, the response I do give them is it's an adult problem and let me handle it and we will see how it goes. So it's not something that I talk about. That's why I'm saying this word choice is not something

Primary judge: What did you do between May and August of '23 to work through - using your words, to work through the fact that the children were not spending any time with their father?

[The appellant]: From my recollection, they actually didn't want to because they had been injured and some other things happened that I can't recall, so that's why

Primar judge: An injury that occurs prior to you agreeing to overnight time?

[The appellant]: No. [Y]'s injury, the scrapes - because that's after that injury, and its denial is when the stop - the time stopped. So it would have been something in regards to that when time

Primary judge: Help me understand this. In August you then appear - let me make sure I get this right. Sorry. It's not popping up. In August you appeared - sorry. I've got it now. In August you appeared before Senior Judicial Registrar Malinowski, and you agree to an order for overnight time, eventually. What changed between May and August which sated your concerns in circumstances where these children were not spending any time with their father? What changed?

[The appellant]: If I can be brutally honest, my lawyer's opinions and her advice to me. And I felt a bit trapped, and I consented to orders I didn't actually consent to based on her advice, and that's why, as I said before, I shortly changed lawyers after it. I don't know if that's actually allowed to be said here, but that's what was happening. I had a case where I was still uncomfortable, but I was told you will lose that, "Don't do this. You have to agree." So I listened to my lawyer's advice, because I don't know any else - anything else to do in this scenario.

(Transcript 20 January 2025, pp 70-71 lines 15-47, 2-30)

1. Again, these enquiries by the primary judge all go to the matters that he was required to determine arising from the parties' respective cases. His Honour was seeking clarification on issues of importance. By asking these questions, it does not give rise to a reasonable apprehension of bias.
2. The appellant then raises apparent criticism of the appellant by the primary judge during cross-examination:

[Counsel for the respondent]: And the final paragraph of that page, with the red 35 at the bottom:

We're further instructed that your client appears to be struggling dealing with the children's basic needs, to the extent that he has his partner administer medication to [Y].

Is that what you believed at that time?

[The appellant}: Yes.

[Counsel for the respondent]: Is that what you believe as you sit here today?

[The appellant]: Sorry, that question doesn't make sense. Can you ask me that again?

[Counsel for the respondent]: Well, as you sit here today, is that your view?

[The appellant]: About his partner administering medication and basic needs?

[Counsel for the respondent]: No, no. No, no.

Primary judge: That his parenting is so deficient that he has to rely upon his partner to provide [Y] medication?

[The appellant]: No, I don't agree with that today. He can do certain things. He does certain things well, and there's other things he doesn't do well.

Primary judge: What about administering of medication?

[The appellant]: Well, he continues to not comply with the order, even though we've had multiple. So [Y] still does not get her medication as prescribed and as provided in the treatment plan. She has regular nighttime meds that has yet to be administered.

(Transcript 20 January 2025, pp 80-81 lines 39-45, 1-17)

1. This exchange does not give rise to any reasonable apprehension of bias. The primary judge was seeking clarification. There is no criticism of the appellant.
2. There is further criticism of the primary judge entering into the fray when the appellant was being cross-examined by counsel for the respondent, however, with the benefit of additional context, the exchange can be seen to occur as follows:

[Counsel for the respondent]: You don't agree with that? So you don't say that you said to her the pill issue has been fixed with the Webster-paks?

[The appellant]: No, this is her wording saying about the difference between objective and subjective.

[Counsel for the respondent]: Ma'am, 219, the red - the red page?

[The appellant]: Yes.

[Counsel for the respondent]: The red number, the bottom of the page?

[The appellant]: Can I ask when our court case was with that medication court order?

[Counsel for the respondent]: Ma'am, no?

[The appellant]: Well, this line does not say that to me. It says "can be fixed"

Primary judge: Just look at the second paragraph?

[Counsel for the appellant]: Yes.

Primary judge: She says:

I cannot objectively say, beyond the concern of the meds, which as you have said, is fixed by him using the Webster-pak.

[The appellant]: Yes, I agree that that's what it says, but it doesn't say we are using them. That would have been the plan maybe when we were going to court.

Primary judge: Well, how - do you accept that the issue was fixed?

[The appellant]: No, it hasn't. As I said before, he's still not administering [Y]'s medication, because the Webster-pak is only the tablets for [X]. My other daughter is on liquid, which he had to get his own script. It's a refrigerated one, so I can't transfer mine to him. So no, we still have issues ongoing with medication. He's still not meeting the requirements, as I just said before.

(Transcript 20 January 2025, pp 87-88 lines 38-47, 2-17)

1. Again, this exchange does not demonstrate any matters which would give rise to a reasonable apprehension of bias. The primary judge is seeking clarification.
2. The appellant submits that judicial questioning continued on the second day of the hearing during the cross-examination of the appellant. One of the comments that is subject to submission is the following comment about the involvement of Ms E:

Primary judge: Counsellor, I want you to have to think about Ms [E's] continued involvement with this family. I've got some concerns, but I haven't heard from Ms [E's], but I've got some concerns. Thank you, [counsel for the respondent].

(Transcript 21 January 2025, p 123 lines 35-37)

1. That comment must be viewed in the context of the terms of the affidavit of Ms E filed 15 January 2025. Ms E described herself as an "autism specialist" and that she had completed a bachelor's degree in communications and what she described as a "postgraduate degree" at a University for a degree in Autism. She was not an expert witness and the relevant evidence that she could give was an account of the therapy that she had and could provide to the children.
2. What the affidavit demonstrates by its own terms is that Ms E embarked on an analysis of the expert reports that had been filed in the proceedings regarding the children. At paragraph 42 of her affidavit, she embarks on an analysis of the parenting arrangements and makes critical remarks regarding the respondent where she states:
   1. Based on the knowledge I have been presented with during sessions since [early] 2023 engagement with [the appellant], and one interaction with [the respondent], it is to my understanding that [the respondent] is potentially inhibiting progress with the children's progress by not taking on board their needs, listening to the children's expressions of concerns ad observing their behaviour to come to an unjudgmental standpoint as a parent...
3. Ms E also makes critical remarks about the observations made by the Family Report writer, a clinical psychologist, in the Family Report.
4. It is plain from the terms of that affidavit that Ms E, who advocates for spending weekly sessions with the children for up to 45 minutes, had formed a negative view of the respondent although she had only spoken to him once and has not invited any contact from him. Ms E very much entered into the fray by being provided with a suite of court documents (although her evidence regarding this is unclear and contradictory) and commenting on them.
5. The impugned comment in relation to the continued involvement of Ms E was entirely appropriate. The primary judge was entitled to raise concerns about her involvement, given the terms of the affidavit that she had sworn. No conclusion was expressed. The primary judge was properly raising a subject that concerned him and which his Honour wished to have addressed. As was stated in GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150 at [36]:

... whether or not the suggested apprehension is reasonable must be considered in the context of ordinary judicial practice. A judge is not expected to sit in silence, Sphinx-like, while arguments are presented and will often form tentative opinions on matters in issue. Counsel are ordinarily assisted by hearing those opinions: Johnson v Johnson (2000) 201 CLR 568 at [13], [53] and [80]. Indeed, the exposure of those opinions is calculated to encourage a response from counsel. It is invariably an exhortation for assistance, even when it is expressed in apparently emphatic terms.

1. As to the balance of exchanges raised by the appellant, in our view, none of the questions asked by the primary judge whether considered singularly or cumulatively with all the questions or comments made, give rise to a reasonable apprehension of bias on his part. His Honour was required to make decisions regarding the best interests of the children. The encouragement to counsel to ask questions in relations to issues raised by documents was further to that requirement and does not suggest prejudgment. It is not the case a judge determining proceedings under Part VII of the Act is obliged to rely solely on the cases as presented by the parties and that is made plain by the terms of the Act set out above. See also: U & U [2002] HCA 36; (2002) 211 CLR 238.
2. It is apparent from a reading of the transcript that the primary judge was even handed in the manner that he conducted the proceedings both as to questioning the parties, inviting cross-examination or asking whether counsel intended tendering documents. I do not accept that a reasonable observer would consider that he may have closed his mind by reason of this conduct.

1. The last matter which the appellant contends gives rise to an apprehension of bias, is the conduct of the primary judge on 23 January 2025. This was the fourth day of the hearing and after cross-examination of the appellant had concluded. On this day, the appellant sought an adjournment on the basis that she was ill and in hospital. The primary judge had been informed on a previous day that the appellant had a high-risk pregnancy.
2. As to the particular conduct raised by the appellant in this respect, first, in response to being informed by counsel for the appellant that the appellant had no capacity to participate in the hearing electronically, the primary judge said that he did not accept that the appellant was unable to participate remotely, that the medical certificate provided by the appellant carried no weight and that his Honour could conduct the proceedings around any medical tests the appellant had to undergo.
3. Second, in giving oral reasons granting the application for an adjournment, the appellant points towards the following remarks made by the primary judge:

Primary judge: My preliminary view, absent hearing the balance of the cross-examination of the father or evidence from the single expert, is that there are no concerns about safety, family violence, abuse or neglect which justify a reduction in the children's time with the father.

...on the evidence heard to date, the current time arrangements for the children and time with the father have not caused any disruption to their functioning or development

(Transcript 23 January 2025, p 349 lines 28-34)

1. The appellant contends that this was said where the respondent had not been cross-examined about matters of family violence and his capacity nor had the single expert who raised concerns regarding the respondent's parenting capacity.
2. The final issue raised in relation to the primary judge's conduct on this day was after acceding to the adjournment application, the appellant asserts that his Honour invited the respondent to make an application for interim arrangements for the children given the appellant's ill health. Shortly thereafter, the respondent made an oral application, which the primary judge granted leave for, and orders were made for the children to be transitioned into the respondent's care for the forthcoming weekend. In circumstances where the appellant was attending upon the hospital, the appellant submits that there was no opportunity for evidence to be adduced in relation to the invitation and subsequent oral application and the granting of leave for the application is indicative of the primary judge's prejudgment of significant matters in the proceedings, particularly so where there was no risk to the children aside from the appellant's illness.
3. The chronology of events which occurred on this day of the hearing, and the information provided to the primary judge thereto, of which the hypothetical observer would be cognisant of, is of significance when having regard to his Honour's conduct. We regret having to set this out in detail and making these reasons unnecessarily long, but it is important in providing context.
4. Immediately upon the commencement of the third day of the hearing (23 January 2025), the primary judge was informed by counsel for appellant:

[Counsel for the appellant]: We have a problem, I'm afraid. My client, I understand, is currently in hospital following a bout of food poisoning. A message was received from her at 4.37 am:

I'm in hospital after a gruelling few days and a bad case of food poisoning. My body has quit on me. I've been vomiting all evening and morning. I need to get the baby checked and rehydrated to reduce risk of miscarriage. I'm hoping to go home soon, but I'm exhausted. I haven't slept in two days.

She doesn't want the court to be delayed. She's happy for it to proceed in her absence. I will interpose at that point that I am not happy for the hearing to proceed in her absence.

Primary judge: No.

[Counsel for the appellant]: She goes on to say:

If required after some sleep, I can try to jump on teleconference.

Where we're at the moment, your Honour, is, there has been some communication between [the appellant's solicitor] and the mother this morning, in which it has been indicated that there is a medical certificate.

Primary judge: It had better not say "medical condition".

[Counsel for the appellant]: We've not seen the certificate. We've asked for it. And that's the state of play. What I'm going to suggest to your Honour, rather than abandon the hearing for now, particularly in the absence of a medical certificate, is that we simply stand down.

Primary judge: All right.

[Counsel for the appellant]: If that medical certificate is received, I will show it to my friends, and we can perhaps at that point ask your Honour to come back on the bench. I'm hopeful that we won't need to lose the remaining two days. If she's well enough to come this afternoon, then we could perhaps do that. But, by the same token, I don't want to waste people's time and money by asking them to come back tomorrow if we're going to be in the same position. So, my application is, your Honour stand the matter down, and we will update you as soon as we can.

(Transcript 23 January 2025, p 338 lines 5-43)

1. Shortly thereafter, the matter was stood down to allow the parties to receive further information regarding the appellant's situation. The matter then resumed about 40 minutes later whereby the primary judge was informed:

[Counsel for the appellant]: Your Honour, we've received a medical certificate of sorts. It tells us that she is suffering from a medical condition and will be unfit for work, school, or usual activities until 25 January. We have requested a more specific certificate, but we don't have it yet.

Primary judge: All right.

[Counsel for the appellant]: Since my last update, I've been instructed that the mother was discharged home earlier this morning. She then received a phone call from the hospital about some tests that they ran before they discharged her, which indicate she has an infection of her intestine, and they asked her to return to the hospital for more tests. The last I heard, she was on her way to the hospital. She also needs to see a gynaecologist. She instructs us that she has no capacity to dial in by Teams today.

Primary judge: Why not?

[Counsel for the appellant]: Because of the tests and appointments that she needs to attend.

Primary judge: What time are they happening?

[Counsel for the appellant]: I'm sorry?

Primary judge: What time are the tests happening?

[Counsel for the appellant]: I don't know. She hasn't got to the hospital yet, your Honour. But she says she can't dial in by Teams today. That's what I'm instructed.

Primary judge: All right. Thank you.

[Counsel for the appellant]: So, we are hoping to get a more specific medical certificate that might provide some better information for your Honour. I think, though, it's unlikely to be able to comment on her capacity to dial in by Teams tomorrow. That will only be able to be determined tomorrow, your Honour.

Primary judge: All right.

[Counsel for the appellant]: But I'm not seeking an adjournment at this point.

Primary judge: You're not?

[Counsel for the appellant]: No. I'm asking for the matter to stand down some more, so that we can get greater clarity about whether we can do anything useful in the next two days.

...

Primary judge: ...Counsel, my preliminary view is the medical certificate carries no evidentiary weight on the question of any adjournment. It simply identifies that the wife is unfit for work or school or usual activities, and it contains a generic description. Its probative value is vitiated because it does not say how the wife's medical condition hampers her participation in this proceeding, and I refer to Luck v The Chief Executive Officer of Centrelink [2015] FCAFC 75 at paragraphs 48 to 50.

I would need some much better evidence before I'm persuaded that this trial ought to be adjourned, and I'm not persuaded that the wife is unable to participate in the proceedings by electronic means. I can even make arrangements for the wife to dial into the proceedings. I would require precise times about her tests to be undertaken, and we can proceed with this trial around the tests. My preliminary view is I'm not going to adjourn this trial. She has telephone. Presumably she has a laptop. This trial, at least my preliminary view is this trial will continue. So, it is quarter to 11. When would you like me to stand down to, [counsel for the appellant]?

[Counsel for the appellant]: Can I suggest 11.30, but if we hear anything in the meantime I will send a message to you.

Primary judge: Thank you. I'm grateful. [counsel for the appellant], you can make any application you wish to make, but I'm mindful that (a) you're ably assisted by several instructors, (b) I'm assuming someone of your quality would have met with your client extensively to take instructions about your cross-examination, (c) if your client was to listen in to the proceedings, I can't see what the prejudice would be. And if, in the course of any cross-examination, you need to take instructions, something arises and you need to take instructions, I will give you every accommodation.

[Counsel for the appellant]: Thank you.

Primary judge: So, in my mind, the only issue is, when are these tests occurring, and can we fit the evidence in around the tests. I don't accept that she can't dial into the hearing, and I will have my associate get whatever information you need. I think that's really it, isn't it? And the medical certificate. The medical certificate that I've received is - I'm trying to think of an eloquent way to say it - unhelpful. It's generic. It's precisely the kind of certificate that I didn't want to receive. Anyway, all right. Well, I will check in with you at 11.30.

(Transcript 23 January 2025, pp 341-344 lines 32-46, 1-27, 23-47, 1-13)

1. The matter was then stood down for slightly over an hour, whereby upon its recommencement, counsel for the appellant indicated that they wish to seek an adjournment and read into evidence the affidavit of the appellant's solicitor filed 23 January 2025. That affidavit relevantly provided that:

(a) the appellant advised her solicitor at 4:37am that morning that she was unwell due to food poisoning, and she was advised by the hospital to get further medical testing to ensure herself and the baby's wellbeing;

(b) the appellant had obtained a medical certificate which, in the solicitor's own words, "unfortunately [the medical certificate] did not provide specific details as to her medical conditions and/or her ability to attend Court";

(c) at 10:09, some 6 hours following her initial correspondence, the appellant advised her solicitor that the hospital contacted her and requested that she return for further testing for a suspected infection of her intestines. The appellant also required review by an obstetrician due to concerns of the impact on herself and the baby. The appellant indicated that she was waiting for her partner to arrive to drive her to the hospital where she was in no condition to do so herself and she could not participate in the hearing electronically due to her current state;

(d) the solicitor had requested a more specific medical certificate which the appellant would be requesting when next seen by a doctor;

(e) the appellant was returning to hospital which would require lengthy waiting times until she is seen or undergoes any further testing; and

(f) at 10:50am, the solicitor received a telephone call from the appellant who said, amongst other things, that she will be unable to get a medical certificate immediately, she is now experiencing chest pain, that "there's no way" she could attend even by telephone in her current condition and that if she remained in this condition she could not attend the hearing listed for the following day.

1. Counsel for the appellant then informed the primary judge that since the filing of that affidavit, they had been informed that the appellant was the 35th person in queue at the hospital. The primary judge then further stood down the matter for about 25 minutes to allow the parties to liaise with his Honour's associate to find suitable dates for the proceedings to be adjourned to.
2. When the matter recommenced, the primary judge raised:

Primary judge: [Counsel for the appellant], before we proceed, where are the children today?

[Counsel for the appellant]: I have no idea, your Honour.

Primary judge: I'm just concerned that if your client is so gravely ill that she is unable to attend at court or give instructions by electronic means, then your learned opponent might wish to make an application. I'm just concerned that if your client is so gravely ill that she is unable to attend at court or give instructions by electronic means, then your learned opponent might wish to make an application.

[Counsel for the appellant]: Well, I have no notice of this, your Honour. I have no instructions about it, and nor can I get instructions.

Primary judge: You can't speak to your client again?

[Counsel for the appellant]: Well, maybe. I don't know.

Primary judge: I'm just concerned about the care and welfare of the children, in the circumstances where your client is hospitalised.

[Counsel for the appellant]: Well, she has not been admitted, as far as I know.

Primary judge: Well, I understand the thrust of the affidavit is she's not well enough to attend at court today, and she won't be well enough to attend tomorrow. One wonders in those circumstances how she's well enough to care for two children.

[Counsel for the appellant]: Well, I have no instructions, your Honour. I could perhaps try to get some. I must say, I'm a bit blindsided by this.

Primary judge: All right. Well, let's resolve the issue about the trial first, and then we will work out the care arrangements for the children. Now, counsel have indicated that 11 and 12 February is convenient.

(Transcript 23 January 2025, p 347 lines 8-37)

1. The primary judge then pronounced oral reasons for the granting of the adjournment application, where he expressed the preliminary views at [69]. After brief discussion with the parties as to the form of the orders for adjournment, the primary judge stood the matter down for about 20 minutes:

Primary judge: All right. Well, I will just adjourn briefly. If the parties want to have a discussion about the children's parenting arrangements over the next few days, I don't need to make any order about it, but if counsel want to have a discussion about it, because I am concerned about where the children might be, and I will come back if you need me to make any order. I will adjourn.

(Transcript 23 January 2025, p 351 lines 35-39)

1. On resumption, counsel for the responded informed the primary judge that they sought to make an oral application for the children to be in the care of the respondent from that day (Thursday) until Saturday. Counsel for the respondent pointed towards the following evidence in support of the application:

[Counsel for the respondent]: ...The evidence that is relied upon - clearly, the father hasn't filed an affidavit, because he was unaware that this situation was going to arise. But the evidence that he relies upon is the very evidence that has been before you in support of the application for an adjournment, which at a very simple level is that the mother is not in a fit state to instruct her legal representatives. That's the opinion of her solicitor. And it's clear from the submissions that have been made to your Honour throughout the day that the mother is so unwell that she cannot even attend court today or tomorrow, via telephone or some sort of video link. And it's on that basis that the application is made.

(Transcript 23 January 2025, p 352 lines 20-29)

1. Counsel for the appellant in response to the application submitted:

[Counsel for the appellant]: Your Honour, as my friend has indicated, the children are at vacation care, which is a place that is familiar to them, because their mother works full time. They're not expecting to be collected by their father today. They're probably quite anxious about their mother in circumstances where she has had to go to hospital today. And we know that these are children who suffer from anxiety. The mother is currently having an ECG, possibly related to the chest pain that your Honour read about earlier. If your Honour makes this order, that could cause her extra stress and anxiety. That could even aggravate her medical condition.

It's not unknown that parents become ill whilst children are in their care, and yet they're able to make arrangements for their care with assistance from others who are known to and trusted by the children, as has happened here. The application is not properly before the court, in my submission. It's not known whether an order requiring her partner to provide a Webster pack at 4 pm could be complied with. We don't know where he might be at 4 pm today. He may be at the hospital. Your Honour, there are too many unknowns attached to this. The interim orders are being complied, and we're told they work well. Let them continue. There's no need for the court to intervene in this way on such scant evidence. You have no medical evidence before you.

(Transcript 23 January 2025, pp 352-353 lines 33-47, 1-4)

1. The primary judge, following brief discussion, delivered oral reasons acceding to the application and orders were made for the respondent to spend time with the children from 5:00pm that day until 4:00pm on the Saturday with the children to communicate with the appellant electronically that night and the next.
2. Turning now to each of the appellant's assertions in relation to the primary judge's conduct on that day:
3. It was submitted by the appellant that the primary judge's response to the medical certificate that had been produced by the appellant on 23 January 2025 formed part of conduct which gave rise to an apprehension of bias. The primary judge was entitled to have little regard to the medical certificate that was provided. He made it plain from the outset, and prior to the provision of the medical certificate, that he would not accept an opaque and/or generic medical certificate. This was perfectly reasonable. As was stated in Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 at [22]- [23] :

All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything.

Doctors probably do not realise that they are engaging in an exercise in futility when they issue such certificates and expect courts to treat them as evidence if, indeed, that is what the doctors do expect. These are matters about which professional organisations within the medical profession really ought to consider informing their members.

1. In UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 at [42], Pepper J outlined that, at minimum, a medical certificate should answer why a medical condition will prevent a litigant from participating in a court hearing either in person or by other means with a helpful summary of the relevant principles thereafter.
2. Notwithstanding the primary judge's warning, he was provided with a generic medical certificate.[2] This included pre-filled boxes which were ticked, including that "he/she will be unfit for work/school/usual activities from 23/01/2025 to 25/01/2025" and that "He/she was treated for (optional) Medical condition". It was entirely reasonable for the primary judge to express that the medical certificate carried no weight and, on that basis, that he was not persuaded that the appellant could not participate remotely. That comment is not evidence of prejudgement. The unsatisfactoriness of the appellant's medical certificate was acknowledged by both her solicitor in the affidavit and counsel during the hearing. The basis for the primary judge's willingness to conduct the hearing around the medical tests was, first, because the medical certificate lacked why the appellant could not participate remotely, and, second, when raised with counsel for the appellant why the appellant could not participate remotely, the primary judge was informed because of the tests and appointments she needed to attend and there was no indication, at that point, that it was because of her condition. Any assertion that the hypothetical observer might think otherwise of the primary judge's conduct in this respect is rejected.
3. As to the primary judge enquiries about the care of the children and the application thereafter, the primary judge was faced with an evolving situation. Initially, he was informed that the appellant was suffering with a bout of food poisoning and after some rest she may be able to participate remotely. Less than an hour later, the primary judge was informed that the appellant had an infection of her intestine, and she had no capacity to participate remotely. Just over an hour after that, the affidavit by the appellant's solicitor was filed which detailed the appellant's worsening condition, that she likely could not participate in the next day of the hearing and that she could not drive herself and required the assistance of her partner. The primary judge was then informed that the appellant was undergoing an ECG for chest pain.
4. Counsel for the appellant acknowledged that there was a lack of information about the appellant's condition and the care of the children. On the evidence that was before the primary judge, the appellant's condition was worsening and unknown with further tests to be conducted and she needed to be supported by her partner. It was perfectly sensible for the primary judge in those circumstances to make enquiries about the care of the children.
5. The assertion that the appellant was unable to provide evidence about her capacity to provide for the children during this time is rejected where she had counsel representing her and was in communication with her solicitor for the provision of information for the filing of an affidavit by the solicitor. It was said that evidence was only for the adjournment application and she could not give instructions by reason of her ill health, however, this leads to the logical inference that her short-term capacity to care for the children was compromised.
6. The notion that by the making of the interim orders, the primary judge had closed their mind to the contested issues is also without merit. The appellant's case during the hearing was not that the respondent posed such a risk to the children that there be an order for no time between the respondent and the children. The governing parenting orders at the time provided for the respondent to spend overnight time with the children for three nights per fortnight. Indeed the children had spent the previous weekend with the respondent. It is rejected, that by making interim orders for the children to spend a one-off, additional two nights with the respondent in circumstances where during a final hearing the appellant became ill and her condition unknown, a hypothetical observer might consider that the primary judge might not bring an impartial mind to the resolution of the matter.

1. Having regard to the totality of the matters raised by the appellant and considering those matters as a whole, they still do not satisfy the test for apprehended bias.
2. This ground is without merit.

1. Ground 2 relates to what the appellant alleges is the primary judge failing to have regard to material considerations when making an order restraining the children's attendance upon Ms E.
2. The respondent and the ICL sought the order preventing the children's attendance on Ms E. The primary judge, in acceding to this, stated:

1. The children's "autism specialist" was an unimpressive witness. When making that assessment, I bring to account the fact that the autism specialist only started practising in [late] 2023. Her oral evidence was to the effect that she had no experience working with separated families or families involved in litigation in this Court. 2. I accept the submission made by the father's counsel and the Independent Children's Lawyer that it is in the children's best interests to restrain the mother from facilitating the children's ongoing attendance on the autism specialist for the following reasons:

(a) The specialist's evidence was odd. She deposed to receiving certain court documents including the mother's case outline but under cross-examination, said that she had only received the report of the single expert; > > (b) The specialist expressed a view about whether the father was or was not inhibiting the children's progress despite the fact that she had only discussed the children's progress with the father on one occasion. To this extent, the specialist seemed to accept the mother's version of events without challenging her about their accuracy or otherwise; > > (c) The specialist sought to criticise the single expert and his findings when it is clear to an objective observer that the specialist did not have the qualifications to do so. The specialist asserted that she had a "degree in autism" when in fact, she held a Graduate Certificate in Autism from the [University]. The specialist failed to explain how this certificate assisted her to critique the opinions expressed by the single expert who is a [specialist psychologist].

1. Regrettably, and by the manner in which she has conducted herself, the autism specialist has caused the father to lack confidence in her impartiality and her ability to assist the children in an objective manner. It is in the children's interests that their father has confidence in their treating medical practitioners and allied health professionals.
2. It is contended by the appellant that the primary judge failed to consider:

(a) the therapeutic relationship the children have with Ms E;

(b) the adverse impacts of a sudden change on the children;

(c) whether alternative services would be available in the short term; and

(d) the expert evidence.

1. Of particular emphasis by the appellant, is the following remarks made by the Family Report writer under cross-examination:

[Counsel for the respondent]: And so, in those circumstances, taking into account all of that, of course, there would be a loss for the children if they have an alternative service provider, but would you say that, on balance, it's better for there to be a service provider that both parents engage with on equal footing. It would be more fair for the girls for that to happen, or for there to be a loss, and [the respondent] simly (sic) just wants to deal with whatever views Ms [E] or he perceives Ms [E] has about him?

[Family Report writer]: Well, I'm mindful it's one encounter, so perhaps more time would need to be given to that, but I would appreciate the challenge for the father in that regard. I would nonetheless have concerns about another change of therapist for the children that cannot be set aside too easily, particularly given their diagnosis.

(Transcript 14 February 2025, p 621 lines 7-16)

1. This, it is said by the appellant, should be viewed within the context of the following evidence by the Family Report writer:

Primary judge: She says in her affidavit she has a bachelor degree in autism. There is no such thing. She has undertaken a certificate in autism. So does that impact on any of the views that you're expressing to [counsel for the appellant]?

[Family Report writer]: Right. In terms of what she's able to do with the children therapeutically. No. I think she - she indicated that she has studied as part of her course - I took her at face value - skills unique to children with ASD and understanding of ASD. From her descriptions of the work, it sounded to me like she, for want of a better word, doing it, knew what she was doing.

(Transcript 14 February 2025, p 609 lines 33-39)

1. The Family Report writer, however, also gave evidence during cross-examination that "when a child practitioner... takes a stance in relation to court matters, it often proves very problematic and can sour the trust parents have in that clinician."[3] This was followed with the Family Report writer agreeing that given Ms E's role with the children, it is crucial that the respondent has confidence in Ms E and does not feel that Ms E is biased against him.[4] Before agreeing that given Ms E made recommendations about parenting arrangements, it was a likelihood that the respondent may never have confidence in Ms E.[5]
2. It is important to bear in mind the quality of the evidence of Ms E that had been filed which has been discussed above which was before the primary judge. It is also important to bear in mind the following matters that arise from the evidence before the primary judge regarding the involvement of Ms E.
3. The appellant engaged the services of Ms E in late 2023. She did not advise the respondent of such nor was the respondent aware of Ms E's treatment of the children. The respondent only became aware of Ms E's engagement with the children as a result of his solicitor inspecting subpoena material. On her own evidence, Ms E deposed to only having spoken to the respondent once in 15 months. Ms E also confirmed that she did not attempt to reach out to the respondent.
4. Whilst Ms E stated in her affidavit that she had a "degree in Autism" in fact she had no such degree and held what she described as a certificate in autism and commenced clinical work with children at the end of 2022 and beginning of 2023. She had no previous experience in dealing with parents of children engaged in family law litigation. She first worked with the children in late 2023.
5. At the time she was engaged, the parties were subject of the August 2023 orders which provided for equal shared parental responsibility. Notwithstanding those orders, Ms E was engaged by the appellant and the respondent was not registered as a guardian or parent in the paperwork completed by the appellant.
6. Ms E's affidavit is then critical of the Family Report prepared. The Family Report makes specific reference to the Family Report writer speaking to Ms E for the purpose of preparing the Family Report. When giving evidence to the Court, Ms E was initially unable to recall speaking to the Family Report writer.
7. When asked whether her certificate in autism qualified her to give an opinion on what a what a clinical psychologist might say about the children, Ms E offered that she was on a similar level and then stated:

Ms E: ...It's a - it's complicated space, because obviously what a clinical psychologist would do versus myself is very different, the degrees are very different, the experience is very different. But according to the NDIS, with some of the training that I have done since my postgraduate degree, a lot of the training that I have done in this - you know, some of the programs that I mentioned in the affidavit, like [Program A], [Program B], [Program C], all of those programs - those programs are actually conducted also with - with psychologists. So I'm in the same category as psychologists, child psychologists, occupational therapists, speech pathologists and counsellors. I fall under the same umbrella as them.

(Transcript 22 January 2025, p 280 lines 23-32)

1. Ms E then stated that "I would never say that I'm at the same level as a clinical psychologist. No."[6] Notwithstanding, she then immediately followed this by agreeing that she felt that she had the expertise to be able to critique a report of a clinical psychologist.
2. Ms E also gave evidence that before preparing her affidavit, she spoke to the appellant's solicitor because it was the first time that she had prepared an affidavit and she needed some context of "exactly what they were needing".[7]
3. She agreed that the respondent had no input into discussing what the children's needs are and that had clouded her views as to what she thought might be good for the children in the future.
4. Ms E in her affidavit and evidence to the Court confirmed that she thought that the then current parenting arrangements with the respondent spending three nights per fortnight with the children were working.
5. In closing submissions when it was raised with counsel for the appellant that Ms E may have compromised the therapeutic relationship because she had stepped into the fray and expressed a view about parenting, it was submitted by counsel for the appellant that had not seemed to infect her therapeutic relationship with the children and that it was a "rookie error".[8]
6. It is noted that there was no evidence submitted as to the availability or lack thereof, of alternative therapists, or the means by which the children could transition to an alternative therapist, in circumstances where the respondent had clearly raised legitimate complaints regarding the conduct of Ms E and where the appellant was on notice of concerns raised in the Family Report. The appellant raises that there was a lacuna of evidence regarding this where an application for an injunction of this type stemmed from the primary judge's remarks and had not initially been sought by either the respondent or the ICL. It is difficult to accept this where the primary judge first raised his concerns about the continued involvement of Ms E on the second day of the hearing (21 January 2025). The matter was then adjourned part-heard until 10 February 2025 (for a further three days). The appellant could have provided evidence as to the matters deposed to above but failed to do so.
7. The primary judge was aware of the submissions made during closing submissions for the appellant regarding Ms E and the importance of the relationship with her and the children. The primary judge engaged with counsel for the appellant regarding these points. The primary judge was not obliged to accept the expert evidence referred to in support of this ground and the primary judge had the benefit of hearing the cross-examination of the parties, including Ms E, which the Family Report writer had not.
8. It was open, on the evidence, for the primary judge to make a finding that the children's attendance on Ms E is not in their best interests for the reasons that his Honour expressed. Implicit in the reasons given is that the conduct of Ms E was such that she should not continue in her role notwithstanding the therapeutic relationship with the children. That is an entirely rational decision given the evidence that his Honour read and heard. It is not necessary for a judge who is exercising a discretionary judgment to detail each fact which he/she has found to be relevant or irrelevant, nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference of a finding is sufficiently clear (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Rafferty & Spencer [2016] FamCAFC 97; (2016) FLC 93-710 at [30]).
9. This ground is without merit.

1. This ground pertains to an assertion by the appellant that the primary failed to provide adequate reasons and/or failed to have regard to material consideration in respect of the order for the parties to have joint decision-making responsibility.
2. We respectfully agree with the reasons and conclusions reached by Hogan J in relation to the adequacy of reasons given by the primary judge as to why there was no error on the part of the primary judge in relation to the orders for joint decision-making responsibility. This ground is not made out.

1. The appeal should be up held in respect of those grounds relating to property and otherwise dismissed. We agree that for the reasons expressed by Justice Hogan that the proceeding only insofar as it relates to property should be remitted for rehearing before another judge and a costs certificate should be issued to both parties.

I certify that the preceding two hundred and thirty-eight (238) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Hogan, Altobelli & McNab.

Associate: B. Anderson

Dated: 23 December 2025

[1] Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 294; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585; Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300 at 302; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at 233; Strahan & Strahan (Disqualification) [2009] FamCAFC 204; (2009) FLC 93-414; British American Tobacco Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; Charisteas & Charisteas [2021] HCA 29; (2021) 273 CLR 289; Scott & Munayallan [2022] FedCFamC1A 44.

[3] Transcript 14 February 2025, p 620 lines 23-27.

[4] Transcript 14 February 2025, p 620 lines 44-46.

[5] Transcript 14 February 2025, p 621 lines 1-5.

[6] Transcript 22 January 2025, p 280 lines 40-41.

[7] Transcript 22 January 2025, p 281 lines 16-19.

[8] Transcript 14 February 2025, p 128 lines 22-26.