Sagilde v Magee [2018] FamCAFC 143

Procedural fairness matter

A principle embedded in universal legal practice is a litigant’s right to procedural fairness in court proceedings. This includes the right of a litigant to:

• Know the case advanced against that party’s interest;
• Have the reasonable opportunity to answer that case;
• Have the reasonable opportunity to dispute an opponent’s case by cross-examination of witnesses; and
• Have the reasonable opportunity to present material information and submissions before orders are made.

The matter of Sagilde v Magee demonstrates that this fundamental principle was not upheld by the trial judge and as a result, an appeal was allowed.

A parenting dispute arose between Ms Sagilde, the mother, and Mr Magee, the father, regarding their then 12-year-old child X. After hearing oral evidence from a single expert witness, Dr B, the trial judge ordered that Mr Magee have sole parental responsibility for X and for X to live with him. The orders confined Ms Sagilde’s communication with X to her sending cards, letters and presents at Christmas, Easter, on X’s birthday and on one other occasion each year as well as an injunction restraining her from attending X’s school.

The appeal turned on two issues originating from the trial which the mother contends she did not receive a reasonable opportunity to address:

1. The trial judge’s findings that the child is potentially at risk of physical harm in the care of the mother if final orders are made which result in the child living primarily with the father; and
2. The possibility of orders being made which include no provision for the child to spend any time with the mother.

These matters were based on Dr B’s testimony in her second cross-examination via leading questions from the father’s solicitor which introduced a new topic. These recommendations were not contained anywhere in Dr B’s expert written report provided in advance of the trial nor did they reflect or be consistent with the child’s expressed views to the experts. On the contrary, X expressed to Dr B and Ms L, a psychologist who provided therapeutic counselling to the family, that he wished for the current living arrangements not to change – that being, living primarily with his father and spending alternate weekends with his mother. Hence, Ms Sagilde was denied the opportunity to cross-examine Dr B and Ms L on these two areas of concern.

Strickland, Murphy and Kent JJ found that procedural unfairness was established. They did not set aside the orders regarding the father having sole parental responsibility nor the child residing with the father made by the trial judge. However, they did remit the proceedings to the trial judge to reconsider the question of orders for the child to spend time and/or communicate with the mother.