…but not material to reversal of care order
In Berry & Andrews [2022] FedCFamC1A 120 (3 August 2022), the Full Court (Tree, Jarrett & Campton JJ) dismissed a mother’s appeal from final orders that the parties’ 12-year-old live with the father.
The court referred to the article of J.B. Kelly and J.R. Johnston entitled The Alienated Child: A Reformation of Parental Alienation Syndrome.
The mother appealed, arguing an error of law resulting from a denial of procedural fairness, where she had been given no notice of the court’s intention to rely on the article.
The Full Court said (from [10]):
“ … [P]rocedural fairness require[s] that anything relied upon by a court … be made known to the parties to the proceeding prior to the making of the decision …
[11] … All parties agree that neither the article nor any intention … to rely on it was identified …
[12] … If further information would not … have made any difference to the result …, an appeal establishing a breach of the rules of procedural fairness … will … fail … (…)
[19] … [I]t is necessary to … scrutinise his Honour’s reasons … to discern whether it is … possible that the decision made could have been different had the breach … not occurred … (…)
[38] … [H]is Honour … thought that [the mother] … demonstrated a lack of insight into the impact of her conduct on the child … (…)
[43] … [H]is Honour considered that … continuing to live primarily with the … [mother] … would mean the child would not spend time with her father. (…)
[52] The … [mother] … argues that … the reasons establish that the … judge’s approach to the evidence was … informed by the research to which he referred. …
[53] … His Honour made no finding that the [mother] … was ‘guilty’ of parental alienation syndrome. …The … judge’s focus was firmly on the facts of the case … (…)
[58] … [W]e do not consider it realistically possible that the orders made … could have been different had the breach of procedural fairness not occurred. (…)”
Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).
Share this article