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Finding of procedural unfairness  

Finding of procedural unfairness  
07 May 2008
A father has succeeded in obtaining a rehearing in a relocation case because of procedural unfairness in the original trial.

In Lamereaux and Noirnot (2008) FLC 93-364 the father appealed against an order which permitted the mother to relocate the child of the parties to France.

The issues which became the focus of the appeal were asserted error by the trial judge in accepting and relying upon limited portions of the evidence of the mother's treating psychologist, and a lack of procedural fairness and asserted error by the trial judge in relying on evidence of an expert given in other proceedings without giving the parties an opportunity to make submissions.

The members of the Full Court concluded that the trial judge erred in ignoring certain unequivocal evidence of the psychologist.

They also found difficulty in reconciling several of his conclusions and were satisfied that the necessary evidentiary foundation for the conclusion that there was a prospect the mother would progress into severe depression if she did not relocate was not available based on the psychologist's evidence.

They were also satisfied, having regard to the provisions of the Evidence Act 1995 (Cth) relevant to judicial notice, the authorities on the use of extraneous material and the need to afford procedural fairness to the parties, which in the circumstances of the case would have included the right to cross-examine the expert who gave evidence in the other proceedings and further cross-examine the psychologist and family consultant, that it was inappropriate for the trial judge to incorporate the evidence of the expert into his reasons for judgment.

The appeal was allowed and the application was remitted for rehearing.

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