By Craig Nicol and Keleigh Robinson -
Key decisions
- Berry & Andrews [2022] FedCFamC1A 120
- Badir & Badir [2022] FedCFamC1A 109
- Hardrick and Hardrick [2022] FCWA 90
- Kachmar & Madero [2022] FedCFamC1F 476
CHILDREN
Court’s reliance on academic article without notice breached procedural fairness, 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 the mother’s appeal from final parenting orders that the parties’ 12 year old child live with the father.
The Court referred to the article of J B Kelly and J R Johnston entitled ‘The Alienated Child: A Reformulation of Parental Alienation Syndrome’.
The mother appealed. She argued there had been an error of law resulting from a denial of procedural fairness as she had not been given 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 …
