By Armand Mengolian, Law Clerk

Procedural fairness where the parties’ mental health is in issue

In the case of Naparus & Frankham [2020] FAMCAFC 32, the Full Court of the Family Court was required to consider whether the primary judge’s reliance on an expert’s report determining that the father was of sound mental health was procedurally fair.

Orders made by the Federal Circuit Court provided that both the mother and father of a child have equal shared responsibility and for the child to live with the mother in Victoria.

However, the child could spend unsupervised time with the father and was to live with him if the mother moved to live in Western Australia, which she had intended to do. During trial, the mother expressed concerns regarding the child’s protection from harm. It was her view that the father suffered from a mental condition which caused him to act violently and irresponsibly.

A single expert witness was then engaged to perform a psychiatric evaluation of the father. The expert concluded that the father did not suffer from any psychiatric condition and raised no concerns for the child to be in the father’s unsupervised care. The primary judge, relying on this evidence, was not satisfied as to the mother’s claims.

The mother was denied the opportunity to rebut and cross-examine the expert even though she had requested to do so.

The Full Court of the Family Court held that there was no suggestion that the primary judge exercised any discretion in deciding whether or not to grant the mother permission to cross-examine the expert witness. There is no right to cross-examine a witness in the course of a hearing, but rather, the right of all parties to a fair trial. The mother’s requests for cross-examination should have been considered by the primary judge, followed by a decision to allow or not to allow it. Because the primary judge had failed to facilitate an opportunity for the mother to challenge the expert’s evidence, the mother’s right to a fair trial was not upheld.

The expert’s opinions were formed on an incomplete and misleading history provided by the father. Had the mother been able to cross-examine the expert about those matters, the expert’s evidence might have been amended in some material way.

Referring to the case of Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, the Full Court stated that the denial of procedural fairness ruptures the integrity of the trial process and requires the re-hearing of the proceedings.

The Court ultimately allowed the appeal to set aside orders and held the proceedings be remitted.