CDJ v VAJ (S32-1998) [1998] HCA 67 22 October 1998
ORDER
Appeal allowed.
Set aside Orders 2, 3, 4, 6, 7 and 8 of the Full Court of the Family Court of Australia and, in lieu thereof, order that the appeal to that Court be dismissed in so far as it relates to issues of residency and contact.
The parties have liberty to file, within 14 days of the date of this Order, written submissions with respect to the making of orders concerning the alteration of property interests and whether Order 1 made by the Full Court should be set aside.
The parties have liberty to file, within 14 days of the date of this Order, written submissions with respect to the order for costs in this Court and the Full Court and the granting of certificates pursuant to the Federal Proceedings (Costs) Act1981 (Cth).
On appeal from the Family Court of Australia
Representation:
D M J Bennett QC with T L P Hodgson for the appellant (instructed by Barwick Boitano Lawyers)
D F Jackson QC with P Hanna for the respondent (instructed by Mark Phillip Symonds)
2.
Intervener:
P I Rose QC with R Flohm for the children's representative (instructed by Terence Murphy, Solicitor, Legal Aid Commission of New South Wales)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
CDJ v VAJ
Family law – Appeals – Appellate jurisdiction of Full Court of the Family Court of Australia – Parenting orders made pursuant to Family Law Act1975 (Cth), s 64B – Principles to be considered in appeals concerning parenting orders – Whether different to principles requiring consideration at first instance.
Family law – Appeals – "paramountcy principle" in Family Law Act1975 (Cth), s 65E – Best interests of a child – Relevance to decision whether or not to admit further evidence or set aside orders of primary judge in appeals concerning parenting orders.
Family law – Appeals – Discretion of the Full Court of the Family Court of Australia to receive further evidence on appeal – Statutory origins of the discretion – Relevance of common law principles governing admission of fresh or further evidence.
Family law – Appeals – Discretion of Full Court of the Family Court of Australia to receive further evidence on appeal – Extent to which limitations imposed by terms of conferring statute – Principles governing exercise of discretion – Whether discretion improperly exercised.
Evidence – Taking opposing party by "surprise" at trial – Whether late-filed affidavit material gave rise to "surprise" meriting an order for retrial.
GAUDRON J. This is an appeal from a decision and orders of the Full Court of the Family Court of Australia[1]. The appellant and respondent are…
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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AGLC
CDJ v VAJ [1998] HCA 67
Case
[1998] HCA 67
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia by the father (CDJ) against parenting orders made by the Full Court of the Family Court of Australia. The dispute originated from parenting orders made by a primary judge concerning the parties' two natural children, C and D. The Full Court had allowed the mother's appeal, admitted further evidence, and ordered a rehearing of the matter.
The High Court was required to determine whether the Full Court had erred in admitting further evidence on appeal and in ordering a rehearing. Specifically, the Court considered the principles governing appeals concerning parenting orders, the paramountcy principle of the child's best interests, and the discretion of the Full Court to receive further evidence under section 93A(2) of the *Family Law Act 1975* (Cth). The Court also examined the extent to which common law principles regarding fresh evidence, such as those in *Wollongong Corporation v Cowan*, applied to the statutory discretion conferred by section 93A(2).
The High Court held that the common law rules governing the admission of fresh evidence did not automatically confine the discretion to receive further evidence under section 93A(2) of the Act. The Court found that the Full Court's discretion to receive further evidence was broad, provided it was exercised judicially and consistently with the judicial process. However, the Court also applied the principles established in *House v The King* and *Gronow v Gronow*, which dictate that discretionary judgments, including those concerning parenting orders, can only be set aside on strictly limited grounds. The Court concluded that the Full Court had erred in its approach to admitting further evidence and ordering a rehearing, particularly in relation to issues of residency and contact.
The High Court allowed the appeal, setting aside the Full Court's orders for a rehearing concerning residency and contact. The Court ordered that the appeal to the Full Court be dismissed in so far as it related to those issues. The parties were granted liberty to file written submissions regarding property alteration orders, the setting aside of a previous order, and costs.
Orders
Orders of the court
1.
Appeal allowed.
2.
Set aside Orders 2, 3, 4, 6, 7 and 8 of the Full Court of the Family Court of Australia and, in lieu thereof, order that the appeal to that Court be dismissed in so far as it relates to issues of residency and contact.
3.
The parties have liberty to file, within 14 days of the date of this Order, written submissions with respect to the making of orders concerning the alteration of property interests and whether Order 1 made by the Full Court should be set aside.
4.
The parties have liberty to file, within 14 days of the date of this Order, written submissions with respect to the order for costs in this Court and the Full Court and the granting of certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
Background
Background to the litigation
It is contended on behalf of the father that the Full Court erred in receiving further evidence in the mother's appeal. Additionally, it is put that the Full Court erred in ordering that there be a rehearing of the matter. Before turning to the arguments, it is necessary to say something of the background circumstances and, also, of the course of proceedings in the Family Court.Background circumstances The parties were married in 1972. They adopted their first two children, both girls. It is convenient to refer to the elder child as "A", as was done in the reported decision of the Full Court. B is the younger of those two children. A was adopted in 1978 and B in 1981. The elder child, A, committed suicide in December 1994. That tragedy and its consequences featured prominently in the proceedings at first instance. The children with whom this appeal is concerned are C and D, the parties' natural children. C, a girl, was born in 1988 and D, a boy, in 1990. The parties separated in May 1996 but continued to live in the matrimonial home until December of that year, the father and the three children upstairs and the mother downstairs. It seems that, at or about the time of separation, the relationship between B and her mother broke down completely, with B refusing to speak to her and aligning herself with her father. The breakdown of that relationship also featured prominently in the proceedings at first instance. By comparison, relatively little attention was directed to the circumstances of C and D, the only children in respect of whom orders were made. C was born prematurely and, according to the evidence, has developmental difficulties for which she has received treatment from a child psychiatrist, Dr Sara Williams. Dr Williams gave evidence in the Family Court that C has some "cerebral dysfunction" which causes learning difficulties and memory and comprehension problems. Dr Williams also testified that C has "always [been] an anxious child with a lot of difficulties, difficulty making friends, difficulty adjusting at school and learning." The mother also consulted Dr Williams with respect to D after she and the father separated and while they were still living under the same roof. It is clear that there was a very considerable degree of stress associated with that arrangement. Dr Williams formed the view that D was "finding the pressure of being divided in loyalty between his mother and father ... too difficult to handle." By that stage, proceedings had been commenced in the Family Court and a separate representative appointed for B, C and D ("the separate representative"). After seeing D, Dr Williams contacted the separate representative requesting that the opinion of an independent psychiatrist be obtained. She declined to make further appointments for D because she did not wish to contaminate the interviews he might have with that psychiatrist. B, C and D were later interviewed for the purposes of the proceedings in the Family Court by Dr Rikard-Bell, a specialist in family, child and adolescent psychiatry.
Evidence
Evidence Before The Court
The Full Court concluded that, when regard was had to the unsatisfactory aspects of the proceedings before Baker J and the further evidence tendered on appeal, "the best interest of [C and D] may not be served by allowing the residence order to stand."[15] It was for that reason that it ordered that the matter be reheard.[15](1997) 22 Fam LR 166 at 197.The reception of further evidence Power to receive further evidence on appeal is conferred on the Family Court by s 93A(2) of the Act. Subject to s 96, which is concerned with appeals from courts of summary jurisdiction, that sub-section provides:"... in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given by affidavit, by oral examination before the Family Court or a Judge or in such other manner as the Family Court may direct." By his Notice of Appeal to this Court, the father contends that the Full Court was in error in departing from "established principles as to the admission of ... fresh evidence". The argument to that effect was based on the decision of this Court in Wollongong Corporation v Cowan[16]. That case was concerned with the common law rules that govern "the grant of new trials on the ground of the discovery of fresh evidence"[17]. Those rules apply only if the evidence in question was not available at the trial and could not have been obtained by the exercise of reasonable diligence[18]. They require that, for a decision or verdict to be set aside on the ground of newly discovered evidence, it be reasonably clear that, if the evidence had been available at trial, "an opposite result would have been produced or ... must have been so highly likely as to make it unreasonable to suppose the contrary."[19][16](1955) 93 CLR 435.[17](1955) 93 CLR 435 at 444.[18]Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444 per Dixon CJ. See also Gallagher v The Queen (1986) 160 CLR 392 at 395 per Gibbs CJ; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140-141.[19]Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444 per Dixon CJ. There is, in my view, no reason for thinking that the common law rules which govern the admission of fresh evidence apply automatically to confine the discretion to receive further evidence conferred by s 93A(2) of the Act. Rather, the terms of that sub-section suggest otherwise in that they refer to "further evidence", rather than "fresh evidence". Moreover, the sub-section confers power on the Family Court to receive further evidence "in its discretion" and is silent as to any matter limiting or governing the exercise of that discretion. It is well settled that if a discretionary power is conferred by a statute which is silent as to the matters which govern its exercise, the discretion is confined only by the subject-matter with which the legislation is concerned[20]. At least that is so if the discretion is conferred on an administrative tribunal. Where a general and unconfined discretion is conferred on a court, it is also governed by the requirement that it be exercised judicially and consistently with the judicial process[21]. It is also well settled that, where a power is granted to a court, it is not to be confined by reference to matters which are not required by the terms of the statutory provision by which it is conferred or the context in which it appears[22].[20]Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-505 per Dixon J; R v Australian Broadcasting Tribunal; Ex parte2HD Pty Ltd (1979) 144 CLR 45 at 49.[21]See Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205 per Gaudron J; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313 per Brennan CJ, Gaudron and McHugh JJ; Oshlack v Richmond River Council (1998) 72 ALJR 578 at 582 per Gaudron and Gummow JJ, 591 per McHugh J (with whom Brennan CJ agreed on this point); 152 ALR 83 at 89, 101.[22]See Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 420-421; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313 per Brennan CJ, Gaudron and McHugh JJ, 316 per Toohey and Gummow JJ; Oshlack v Richmond River Council (1998) 72 ALJR 578 at 582 per Gaudron and Gummow JJ; 152 ALR 83 at 89; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 72 ALJR 873 at 900 per Gaudron J; 153 ALR 643 at 678.
Decision
Reasons for decision
GAUDRON J
HUGH, GUMMOW AND CALLINAN JJ
One other matter should be noted. His Honour said that he had taken the children's wishes into account but, apparently, gave little weight to them because "[a]lthough those wishes were certainly expressed to both Dr Williams and to Dr Rikard-Bell, they were either expressions of what the children wanted their mother to hear or were an echo of the wife's perceptions." It is not at all clear why his Honour thought that C and D were not genuine in the expression of their wishes, particularly when they had been expressed to their father and, presumably, to the separate representative who supported the mother's case.The decision of the Full Court The mother's appeal to the Full Court included various grounds of appeal challenging particular findings made by Baker J. However, the Full Court held that "save for the issues relating to the fresh evidence, any errors demonstrated in the approach taken by his Honour ... would not amount to appealable errors when viewed in light of the test set out in Gronow v Gronow[3] ... or House v [The King][4]"[5]. As already indicated, the appeal was allowed by reason of further evidence admitted in the Full Court. Before turning to that evidence, it is convenient to say something of Gronow v Gronow and, also, of House v The King.[3](1979) 144 CLR 513.[4](1936) 55 CLR 499.[5](1997) 22 Fam LR 166 at 197. It is well settled that discretionary judgments and decisions based on value judgments (for example, determinations as to the best interests of a child) can be set aside only on strictly limited grounds. In House v The King, those grounds were identified in these terms:"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."[6][6](1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. The principles stated in House v The King were applied to a custody decision of the Family Court in Gronow v Gronow[7]. And of course, those principles have to be applied in conjunction with the well established rule that an appellate court will not reverse findings of fact that depend to any substantial degree on credibility or demeanour, unless the trial judge "'has failed to use or has palpably misused his advantage'[8] or has acted on evidence which [is] 'inconsistent with facts incontrovertibly established by the evidence' or which [is] 'glaringly improbable'[9]."[10][7](1979) 144 CLR 513 at 534, 537-538 per Aickin J. Similar principles were expressed at 519-520 per Stephen J and at 525-526 per Mason and Wilson JJ. See also Lovell v Lovell (1950) 81 CLR 513 at 518-519 per Latham CJ, which concerned an application to the Supreme Court of Victoria under the Marriage Act 1928 (Vic) for an order for custody.[8]SS Hontestroom v SS Sagaporack [1927] AC 37 at 47.[9]Brunskill v Sovereign Marine and General Insurance (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57.[10]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ. See also Paterson v Paterson (1953) 89 CLR 212 at 218-224 per Dixon CJ and Kitto J; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 per McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed); Dawson v Westpac Banking Corporation (1991) 66 ALJR 94 at 99 per Mason CJ, 105 per Dawson and Toohey JJ; 104 ALR 295 at 304, 314-315; Louth v Diprose (1992) 175 CLR 621 at 641 per Dawson, Gaudron and McHugh JJ.
Ratio Decidendi
Legal Principle Established
Established by:
GAUDRON J,
HUGH, GUMMOW AND CALLINAN JJ