Brown v Pedersen

[1992] HCATrans 80

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al of 1992

B e t w e e n -

DENNIS OWEN BROWN

Applicant

and

LEANNE FAY PEDERSEN

Respondent

Application for special leave

to appeal

BRENNAN J
TOOHEY J

McHUGH J

Brown 1 13/3/92

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 MARCH 1992, AT 10.05 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:  May it please the Court, I appear

with my learned friend, MR D.M. HAINES, for the

applicant in this case. (instructed by

S.H. Lindsay)

MISS R.A. LAYTON:  May it please the Court, I appear with my

learned friend, MR M.R. RUBEO, for the respondent.

(instructed by Andrew Jordan)

BRENNAN J: Yes, Mr Tilmouth.

MR TILMOUTH:  Your Honours, lest it be clear from the appeal

papers, there is no quarrel from the applicant in

the end result about the paramount consideration

being the welfare of the child in custody

proceedings like these, and it could scarcely be

otherwise, given the mandate to that effect in the

statute, section 60D.

However, as the Court knows, when it comes to

access cases as this one is, there are a series of
relevant factors which are enumerated in section 64
of the Family Law Act, only one of which is the

expressed wishes of the child. Indeed, in

section 64, Your Honours, the wishes of the child

are expressed initially as being one of a series of

factors that the court is required to take into

consideration. Your Honours will see throughout

the word "shall" appears, and the relevant
subparagraph is (b) of section 64(1).

Your Honours will also see there is a rider to that provision relating to the wishes of the child, that is to say those wishes are to be given -

such weight as the court considers

appropriate.

As Your Honours would also know, the child does not

give evidence.	He is prohibited from giving
evidence, and the wishes of the child are commonly

expressed through parents, the parties, counsellors

and through recognized reports.

In this particular case, Your Honours, bearing

in mind that section 64 requires that those wishes

be taken into account together with all the other

enumerated matters, the Full Court of the Family

Court approached the case on this basis, and it is

these passages, we submit, which give rise to

special leave points being two in nature. Can I

take the Court very briefly to the application

book, page 132 and read a key passage under the

heading "Conclusion". It is, of course, a judgment

of three judges combined, a coram of the court.

This is in the middle of the page, Your Honours:

Brown 2 13/3/92

There is no doubt that his Honour was in

error in having used the material in the file

which was not formally placed before him and

in accepting hearsay statements made to

Dr Gerrard by the wife and Mr Pedersen as evidence of the facts stated therein. It may

also be true that in consequence his Honour

may have given the evidence of Dr Gerrard as

to the husband's personality more weight than

it warranted.

Then the court asked this question:

Are those errors of such gravity and so

pervasive that the resulting orders made by
his Honour cannot be allowed to stand and the

matter should be remitted for a fresh trial?

In our view, those matters are only

relevant if one accepts the argument of the

husband that access should only be denied to
him if it were shown that in one way or

another he was responsible for the alienation

of the child from him. They are not relevant,

in our view, on the true position which is

that the question of whether access should be

restored as at February 1991 -

that is the date of the trial, Your Honours -

should be considered in the light of

circumstances existing as at that date and not

by reference to situations which may have

existed at any previous time, or by reference

to questions of fault or responsibility.

And then Their Honours go on to consider four

factors. We would argue with one and four, but

that is a matter of the merits, not a matter of

special leave.

Now, that passage, Your Honours - if I may

trouble you with a further passage, because the two must be read together, in the concluding remarks of the court at pages 135-136, where it clearly picks

up the earlier reference I have just made, at

line 24:

As we have stated before, the maintenance

of access between a child and his or her

natural parent is a desirable good, but it is
not one to which the welfare of the child

should be sacrificed. Omitting any historical

matters and concentrating solely on the

evidence of the child's attitude at the period

immediately preceding the hearing, there was

ample evidence to entitle his Honour to find

Brown 3 13/3/92

that the restoration of access would not be in the child's interest. In our view, the appeal

fails -

and so on.

Your Honours, in our submission there are two

basic matters which justify the grant of special leave occurring in those combined passages. The

first is - - -

BRENNAN J: Just before you get to them, Mr Tilmouth, would

it be right to say that the omission of historical

matters was intended to protect your client from

the adverse inferences that might be drawn from his

conduct?

MR TILMOUTH:  No, with respect, as we would submit it. Many

of those adverse inferences, of course, fell to an

extent with the finding that His Honour took into

account irrelevant matters but, as we suggested,

what is going on here is that the court is

forbidding reference to the earlier history of the

child's wishes, previous orders for access -

whether they were successful or otherwise - and
focussing solely upon the child's express wishes

confined in time only to the trial or immediate

post-trial situation. And in doing that, and this

is partly what we submit the special leave point

is, the court is confining the scope of the wishes

of the child to an instant in time and necessarily,

of course, having the effect of not allowing the
court to assess the weight of those wishes because

the wishes of the child at any one time can only

really be assessed as to their strength in view of

the whole history.

McHUGH J:  Mr Tilmouth, that does not fairly represent the

court's judgment, does it? The court's judgment is

very detailed; it examined the history of the

matter in great detail and it thought that, as at

February 1991, whatever may have been the rights

and wrongs of the matter and whether or not the

father had any responsibility for the alienation of

the child's affection, the child's welfare,
psychologically and perhaps physically, as at that

date, required that no access be granted.

MR TILMOUTH: Well, of course, that is true, but the problem

is, with respect, for the purposes of applications

of this case by trial judges, the very narrow words

that I have read and they are not relevant on the

true position as it was in February 1991 and

concentrating solely on the evidence of the child's
attitude in the period immediately preceding the
hearing. In our submission, those words so used

have the great capacity as directions to trial

Brown 4 13/3/92

judges in the Family Court to very much confine the
scope of ascertaining the wishes of the child,

their weight, putting them in the proper context

and history and also, and this is our next step in

the argument for special leave, by confining it to

that period of time it hardly makes it available to

trial judges to assess the weight of those wishes

unless they can look back and see what has taken

place beforehand.

For example, if the child has maintained a

wish not to see a parent or other party for a long

time, that of course would be relevant. As in this case, Your Honours, the history, in our submission, was strongly relevant; there was access for a

period of over five years. The child only gave a

reason for it very late and there are other

arguments which would be matters of merit rather

than matters of special leave.

TOOHEY J:  But Mr Tilmouth, could I just interrupt you, all

those matters were explored, both by the trial

judge and by the Full Court, were they not? It

seems to me that to fasten on to that last half

dozen lines is really to do injustice to the

court's decision. You have to take the whole of

the decision and all they appear to me to be saying

is that if you look at what is said there then, all

other questions aside, there was ample evidence to

justify the conclusion, but they are not suggesting

that there were not other factors which would also

support the conclusion.

MR TILMOUTH: Well, the words that are relevant, are the

ones I have read, with respect, but I accept that

it must be considered in light of the whole

judgment, including the trial judge's judgment, of

course, and, partly, the reason for reading two

passages was an endeavour to put it in proper

context. But it cannot be doubted at the end of

the day, with respect, that in the end result this

decision turned focusing solely on the wishes of

the child at the time of the trial and, as I have

submitted strongly to the Court - - -

McHUGH J:	No, not the wishes of the trial, but the welfare of the child and having regard to the child's
wishes and feelings as exhibited by the projectile
vomiting, for example, and by reference to the division of opinion among the expert witnesses as to the effect of a custody order, the court thought
that it would not be for the welfare of the child to resume access.
MR TILMOUTH:	Yes. Well, it is true that the court used

those four factors at 133 and 134. Without wanting

to go into an argument which would be one for the

Brown 13/3/92

merits, the division of view between the experts at

134 is one, we submit, was not really there on the

findings of the learned trial judge. There was a

division as to how much the child should be told,

but not a division as to the desirability under

confined conditions of the father having access,

and to that extent we would dispute what appears at

the top of 134, but that would be a matter for the

merits.

McHUGH J: But, Mr Tilmouth, you do not, as I understand it,

dispute factor 3, and in factor 3 the court said

that:

The main issue before His Honour was

whether contact between the child and the

father, could be resumed without inflicting

undue trauma on the child.

Now, if that was the issue, then it was necessary to concentrate on the February 1991 date because

that was when the order would be made.

MR TILMOUTH: Well, that is true and we do not dispute the

finding 3, except to the extent that I have

qualified it and it runs over into finding 4. But

to further answer Your Honour Justice McHugh in the

question you put to me initially, bearing in mind
the four points that the Full Court has finally
seized upon, the danger as well, in our respectful
submission, about what we suggest is the very

narrow view taken by the court in the end result is

that it elevated the wishes of the child virtually

assimilating them to be of paramount importance. I acknowledge those other factors, but when one looks

at what the court actually did, in our submission,
it made the wishes of the child the paramount

consideration.

Now, all of that, we submit, is to too

narrowly confine the scope of section 64.

Your Honours, there is a second point which runs

through the thread, as well as the passages I have

read already from the judgment, and it is a

procedural one and it relates to the nature of the

role of the appeal court, and this is what we

submit is the second basis for special leave. Your

Honours will see, as I have already read at 132-3,

that the court identified a series of what I would

submit are procedural errors. They are spelled out

in a little more detail at 119 to 120, but I do not

read them. Suffice to say that, as the summary of

those findings at 132 indicates, which I have

already read, His Honour took into account material

which was not properly in evidence before him.

Brown 6 13/3/92

Now, in those circumstances, the question of

how an appeal court approaches procedural

improprieties of those kinds is important. In our

respectful submission, when there is that kind of

procedural impropriety, in the sense of having

regard to - - -

McHUGH J: Is this ground raised in your application?

MR TILMOUTH:  In our submission, it is, may it please the

Court. It is raised in respect of the question of

what the Court should do, but it is true that it is

not one of the focal points of the application for

special leave to appeal in so many words, but what

happened in this case, Your Honours, is important.

His Honour, in having regard to materials which was

not tested in evidence or as to which the parties

were denied by reason thereof the opportunity to

make submissions, is a procedural irregularity of

the kind identified by this Court in Stead v State

Government Insurance Commission.

In those circumstances, the appropriate

appellate test is not one which is more in line

with this Court's decision in Gronow v Gronow, the

discretionary review on appeal, but it is a rather

less demanding test from the point of view of an

appellant and simply put, without having to go to

Stead's case, all that must be demonstrated is that there is a possibility that the applicant was

denied the chance of a successful outcome and the

court will remit the matter for rehearing.

What happened in this case, with respect,

again in the passages identified, the court asked

rather different questions which were more akin to

a strict appeal from a discretionary order. It

asks, as I read at 132, "Are those errors of such

gravity and so pervasive that the resulting order

made by His Honour cannot be allowed to stand?",

and so on, which is more akin to the ..... order

discussed by Justice Mason, as he then was, in	Reynolds v Reynolds, which requires the appellant
to demonstrate a miscarriage of justice, and the court concluded, in the passage I have also read,
at 136, "there was ample evidence to entitle His Honour", and so on, which of course are the
classic words of discretionary review.

So, what I am submitting to the Court, if the

Court pleases, that the court took the wrong

approach in considering the -

McHUGH J:  Your point is that the court having found error

on the part of the trial judge, should have made

the decision itself.

Brown 7 13/3/92

MR TILMOUTH: That is right or more particularly, should

have sent it back unless it could be satisfied that

no other conclusion could have been reached.

Your Honours, there is also a third point.

Your Honours would have read that in the judgment

there was a great deal of - - -

BRENNAN J:  Mr Tilmouth, can I just interrupt you for a

moment and take you back to your proposition.

First of all, it seems to me that there is a

difficulty, because I do not see it anywhere in the

draft grounds of appeal. Secondly, I am not sure

that I even now understand precisely what the

proposed ground of appeal is intended to be. What

is the ground of appeal that you wish to raise?

MR TILMOUTH:  The issue is, the appropriate function of an

appellate court once it identifies a procedural

error which gives rise to unfairness and our

submission would be that it then simply has to
apply the test whether it is possible that there

could be a different result. It is not - - -

McHUGH J: But you can put your case higher than that, can

you not? Is not your point that the court below
wrongly took into account material which it should

not have taken into account, therefore it fell into
error, therefore it was the duty of the Full Court

to exercise the discretion itself?

MR TILMOUTH:  Yes, that is right, and only on the admissible

material, and those four points, as I have said

once or twice already, we dispute one and four and

again this would be a matter for the merits, but

especially number four, in our submission, is a

conclusion which cannot be uncontestably drawn; on

the contrary, as the Full Court said, but it is one

which in fact, in our submission, on the admissible

material, could not properly be drawn by the appeal

court.

The third point, Your Honours, deals with the

question of the approach of the court in denying
access to a natural parent. Your Honours will see

that the court declined to apply Cooper v Cooper,

the decision of the Full Court of the Supreme Court

of New South Wales under the old matrimonial causes

legislation, and preferred a number of single

judges of the Family Court to the contrary. The

court as well purported to say or apply at 122, a

previous decision of the Full Family Court in

N and H. Now, without taking Your Honours to that

case, when one looks closely at N and H, in our

submission, it is not a decision of the Full Court

disagreeing with Cooper v Cooper. In fact the

Brown 8 13/3/92

majority accepted Cooper v Cooper, at least by

applying similar words.

BRENNAN J:  What is the question of principle here,

Mr Tilmouth?

MR TILMOUTH:	What I am submitting, Your Honours, is that there was in fact no decision of the Full Court for
which Justice Pawley spoke, in N and H. In fact,
the previous decision in N and H, per
Justices Asche and Barblett, applied
Cooper v Cooper, stating that only in rare and
compelling circumstances should there be an order
made denying a natural parent access to the child.

BRENNAN J: Just before we get to particular cases, the

general principle is that the welfare of the child

is the paramount consideration and therefore the

question of the access of the parent to the child

is a factor to be taken into account in determining

where that welfare lies. Is that not right?

MR TILMOUTH:	Yes, it is.
BRENNAN J:	Does Cooper say any more than that?
MR TILMOUTH:	Cooper adds further words to say, in effect,

that the denial of access to the natural parent is

a serious step and therefore a very important

factor, perhaps one of the most important next to

the paramount interests of a child.

BRENNAN J: Well, if it is an important factor it is a

factor the weight of which has to be assessed in

the circumstances of each case.

MR TILMOUTH: True, but also measured against the consistent practice of Full Courts, we submit, over the years,

that it is so strong that only exceptional

circumstances and solid grounds can justify an
order refusing access, Cooper v Cooper, or as we

would submit, on a proper reading of N and H, where

in compelling circumstances are required to refuse

all access.

BRENNAN J: But what you are saying is that one must, as a

matter of law, be able to put epithets to this in

order to establish the right principle.

MR TILMOUTH:	If you like, yes, but the law has always
BRENNAN J:	Why is it that one cannot simply say that, in

the ordinary experience of judges, as of the

community, the access of a non-custodial parent to

a child is important to the bonding between them.
That is an important factor. Therefore it is given

a great deal of weight on the question of whether

Brown 9 13/3/92

access should be granted or not, but the

circumstances change cases.

MR TILMOUTH:  They do, but as a general consideration this

factor is, with respect, more important. In

passages in M v Mand J v Lieschke in this Court,

the Court effectively spoke of that consideration

as a prima facie consideration. But, in my

submission, Your Honours, the appellable error

appears at page 125, after the court's adoption of

Justice Nygh in Cotton v Cotton, which is a single

judge decision:

For those reasons, we cannot accept the

proposition that the onus of establishing good

and compelling reasons for denying access lay

on the wife, or for that matter, any onus lay

on the husband to establish the contrary.

Rather, as the High Court pointed out in M v M
proceedings for custody or access are not to

be viewed as adversary proceedings in the

ordinary sense, but as an investigation of

what order will best promote the welfare of

the child. For the same reasons we cannot

accept the argument that the child's wish not

to have access to his father should only be
taken into account if it was based on an

objectively ascertainable fault or defect on

the part of the father.

The aspect of that citation we take issue with

is the opening words:

we cannot accept the proposition that the onus
of establishing good and compelling reasons
for denying access lay on the wife -

Our submission is that in fact N and H stands for that proposition. Justice Pawley in that case was

not in dissent, but he did not refer to it; the

other two judges did. What has happened here sub

silentio, as it were, is the Full Court has

overruled itself on our submission and, as the
Court knows, a Full Court can only overrule itself,

at intermediate level at least, if it is convinced

its previous decision is wrong.

Taken to its extreme then at 122, our

submission is that Justice Pawley was not speaking

on behalf of the Full Court, lines 7 and 8. In our

submission, when closely read, that case shows

Justice Pawley stood out alone on this issue.

Justice Barblett, with whom Justice Asche agreed,

used the words "rare and compelling circumstances",

which is akin to the exceptional circumstances on

solid grounds in Cooper v Cooper.

Brown 10 13/3/92

So, if the Court pleases, there are those

three areas upon which we submit special leave is

justified. The question of the importance of the

wishes of the child, the approach of the Appeal

Court to procedural errors, and whether or not the

words of qualification, or however they are
expressed, in considering the weight to be attached
to the prima facie right of a parent to access to a
child are all matters, on their own or
cumulatively, which warrant the granting of special

leave. If the Court pleases.

BRENNAN J: Thank you, Mr Tilmouth. We need not trouble

you, Ms Layton. The analysis of the reasons of the

Full Court in this matter does not give rise to the first question of principle which the applicant

seeks to raise. We understand their Honours to be

evaluating the child's wishes at the time of the
court's order in the light of all the circumstances
of the case. Unless the reasons be construed in
the way for which the applicant contends, there is

no foundation for the grant of special leave on

this ground. As we do not construe the reasons in

that way, special leave on this ground is refused.

The applicant also seeks to raise a ground

relating to procedure that is not stated in the

draft grounds of appeal. We would seldom grant

special leave on a ground that is not raised in the

application book, and we do not think that in this

case we should accept this ground as a ground for

granting special leave to appeal.

Finally, the applicant submits that an error

appears in the manner in which the court evaluated

the welfare of the child. We see no error in the

principles applied by the Full Court in the present

case. If it be the case that Cooper and other

cases in the Family Court suggest that a

non-custodial parent has a presumptive right of

access, they are incorrect and cannot be followed.

Equally, it is incorrect presumptively to deny

access to a non-custodial parent. There is no

presumption either way as a matter of law. The

benefit to the child of maintaining a bond with a non-custodial parent is a matter of fact to which

weight is given according to the circumstances of

the case. This ground upon which special leave to

appeal is sought must also be rejected.

Accordingly, special leave is refused.

MS LAYTON:	May it please the Court, I apply for an order for costs.
BRENNAN J:	What do you have to say to that, Mr Tilmouth?

Brown 11 13/3/92

MR TILMOUTH: It cannot be resisted, Your Honours.

BRENNAN J: It will be refused with costs.

AT 10.36 AM THE MATTER WAS ADJOURNED SINE DIE

Brown 12 13/3/92