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

13/3/92

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 MARCH 1992, AT 10.05 AM

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1992] HCATrans 80
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Mr Brown, sought to challenge orders made by the Full Court of the Family Court concerning access to a child. The respondent was Mr Pedersen. The central dispute revolved around the weight to be given to the wishes of the child and the proper approach to considering evidence in custody and access proceedings.

The legal issues before the High Court included whether the Full Court of the Family Court erred in its approach to the paramount consideration of the child's welfare, as mandated by section 60D of the Family Law Act. Specifically, the court was asked to consider the weight to be given to the expressed wishes of the child under section 64(1)(b) of the Act, and whether the Full Court correctly identified and addressed errors made by the primary judge in admitting and considering certain evidence.

The applicant argued that the Full Court's judgment, which acknowledged errors by the primary judge in admitting hearsay evidence and potentially giving undue weight to certain testimony, did not sufficiently address the gravity of these errors. The applicant contended that the Full Court's reasoning, which suggested these errors were only relevant if fault was established for the alienation of the child, was flawed. Instead, the applicant submitted that the question of access should have been determined based on the circumstances at the time of the trial, irrespective of past fault. The Full Court, however, indicated that the errors were not necessarily of such gravity as to warrant remitting the matter for a fresh trial, particularly if the focus was on current circumstances rather than past responsibility.

Orders