Importance of procedural fairness

Sagilde & Magee [2018] FamCAFC 143

Mother denied procedural fairness where expert’s recommendation for no time was made for the first time from the witness box.

In this case the Full Court heard the mother’s appeal against a parenting order made by the Family Court of Western Australia that the parties’ 12-year-old child live with the father and spend no time with the mother. Injunctions were also made preventing the mother from communicating with the child beyond cards, letters and presents on special occasions. 

During a five-day trial, Court’s order followed testimony from the clinical psychologist who had provided two family reports in the matter. Neither report recommended no time with the mother, in fact the second report (provided a matter of days before the trial) said that there was no compelling reason to change the existing arrangement of the child living with the father and spending time with the mother on alternate weekends. Reports along the same lines were prepared by the child’s treating therapist. 

However, during the trial, the clinical psychologist opined that the mother should have no time due to a risk of harm to the child. 

Neither the child’s treating therapist nor the mother were cross-examined about that evidence.

Nothing in either of the two written reports from the clinical psychologist provided for the trial foreshadowed to the mother anything in the nature of an opinion that the mother’s psychiatric health was so unstable that the expert was of the opinion that the child was potentially at risk of physical harm in the mother’s care; nor was it foreshadowed that, in the expert’s opinion, an order for the child to spend no time or communication with his mother could be consistent with the child’s views or meet his best interests.

To the contrary, whilst the reports reflect that the child had moved from supporting an equal time arrangement, to one of support for the prevailing position, these reports did not convey any opinion or recommendation, or even float as an option to be considered, the child spending no time at all with the mother.

Each of the parents were self-represented at trial, the ICL being represented by counsel.

The clinical psychologist was called to give evidence on the fourth day of trial. She was interposed to give oral evidence during the course of cross-examination of the mother.

At no point did counsel for the ICL open any evidence of the clinical psychologist that was not contained in her reports. 

The questioning of the clinical psychologist in the leading way in which the cross-examination of her by counsel for the ICL occurred led to the clinical psychologist giving evidence, again a departure from anything in her written reports, that consideration ought to be given to the mother’s time being supervised. 

The Court said the point of emphasis is that neither such a risk, nor the possible need of supervision of the mother’s time, was raised, even remotely, in the written reports of this expert. There is no suggestion that this expert … ever specifically canvassed with the child his views about the prospect of orders being made which resulted in him having no time with his mother.

When the mother’s cross-examination was resumed after the clinical psychologist’s oral evidence was completed, nothing was put to the mother in cross-examination either about her presenting a potential risk of physical harm to the child if it were ordered that the child live with the father; nor was the proposition of no time orders put to the mother.

The Court stated that from its review of the transcript, this self-represented mother had no reasonable opportunity to meet a case that her mental health was such that she posed a risk of physical harm to the child. The Court went on to say that it was clear that the trial judge placed reliance upon the oral evidence of the clinical psychologist about the mother posing a potential risk of physical harm to the child.

The Court concluded that, “in the manner in which the evidence unfolded … the mother had no reasonable opportunity to meet a case that it was somehow consistent with the child’s expressed views that there be no orders for him to spend any time with the mother. That is, the mother had no reasonable opportunity to meet a case directed to orders ultimately being made including no provision for the child to spend any time with the mother. An associated concern about that is the feature that at no point did any expert specifically ask the child to express his views about orders including no provision for him to spend any time at all with the mother.”

The appeal by the mother was allowed to the extent of the case being remitted for reconsideration the trial judge of the question of orders being made for the child to spend time with and communicate with the mother.

The mother was denied procedural fairness where expert’s recommendation for no time was made for the first time from the witness box.

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